Amicus Curiae Brief — David Ritter, Applicant v. Linda Migliori, et al.

Supreme Court briefMay 30, 2022

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Acting Secretary Chapman’s Answer to the Motion for

Immediate Special Injunction, Dave McCormick for U.S. Senate

v. Chapman, No. 286 MD 2022 (Pa. Commw. Ct. May 27, 2022) ..................... 1a

APPENDIX B: Acting Secretary Chapman’s Answer to the Application

for the Court to Exercise Jurisdiction, Dave McCormick for U.S.

Senate v. Chapman, No. 46 MM 2022 (Pa. May 26, 2022) .............................. 32a

APPENDIX A

Received 5/27/2022 11:49:42 AM Commonwealth Court of Pennsylvania

Filed 5/27/2022 11:49:00 AM Commonwealth Court of Pennsylvania

286 MD 2022

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

No. 286 MD 2022

DAVE McCORMICK FOR U.S. SENATE, and DAVID H.

McCORMICK,

Petitioners

LEIGH M. CHAPMAN, in her official capacity as Secretary of

State for the Commonwealth, et al.,

Respondents

ACTING SECRETARY CHAPMAN’S ANSWER TO THE MOTION FOR

IMMEDIATE SPECIAL INJUNCTION

May 27, 2022

Josh Shapiro

Attorney General

Christine P. Sun

(pro hac vice application forthcoming)

Marina Eisner

(pro hac vice application forthcoming)

Michael J. Fischer

Chief Counsel and Executive Deputy

Attorney General

States United Democracy Center

1101 17th Street NW

Washington, DC 20036

J. Bart DeLone

Chief Deputy Attorney General

Sean Kirkpatrick

Senior Deputy Attorney General

Jacob B. Boyer

Deputy Attorney General

Attorneys for Acting Secretary of the

Commonwealth Leigh Chapman

1600 Arch Street, Suite 300

Philadelphia, PA 19103

(267) 768-3968

jboyer@attorneygeneral.gov

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

STATEMENT OF THE CASE ..................................................................................2

LEGAL STANDARD ................................................................................................8

SUMMARY OF ARGUMENT .................................................................................8

ARGUMENT ...........................................................................................................10

Petitioner Is Likely To Succeed on the Merits ...................................................10

A. Federal Law Prohibits Disqualifying Timely Received

Absentee and Mail-in Ballots Returned Without the Voter’s

Handwritten Date......................................................................................10

1. This Court Should Follow the Third Circuit’s

Interpretation of Federal Law..............................................................10

2. A Handwritten Date on a Ballot Return Envelope is not

“Material” to Determining Eligibility Under

Pennsylvania Law................................................................................13

B. State Law Also Prohibits Disqualifying Timely Received

Absentee and Mail-in Ballots Returned Without the Voter’s

Handwritten Date......................................................................................18

C. The Purcell Principle Cannot Insulate Counties’ Denials of

the Right to Vote from Judicial Review ...................................................22

CONCLUSION ........................................................................................................24

TABLE OF AUTHORITIES

Cases

Com. ex rel. Pappert v. Coy, 860 A.2d 1201 (Pa. Commw. Ct. 2004) .....................8

Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28

(2020) ..................................................................................................................22

Dooner v. DiDonato, 971 A.2d 1187 (Pa. 2009) .....................................................11

Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153 (11th Cir.

2008) ............................................................................................................ 13, 14

Hall v. Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859 (Pa. 2004)..................12

In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen.

Election, 241 A.3d 1058 (Pa. 2020) .................................................... 5, 6, 11, 16

In re Election in Region 4 for Downingtown Sch. Bd. Precinct

Uwchlan 1, No. 1381 CD 2021, 2022 WL 96156 (Pa. Commw. Ct.

Jan. 10, 2022) ........................................................................................................7

Martin v. Crittenden, 347 F. Supp. 3d 1302 (N.D. Ga. 2018) .................................14

Merrill v. Milligan, 142 S. Ct. 879 (2022) ...............................................................22

Migliori v. Lehigh County Bd. of Elections, No. 22-1499 (3d Cir. May

23, 2022) .............................................................................................. 7, 9, 11, 12

Mixon v. Commonwealth, 759 A.2d 442 (Pa. Commw. Ct. 2000) ............................2

Murphy v. NCAA, 138 S. Ct. 1461 (2018) ...............................................................11

Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) ................................22

Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................22

Republican Nat’l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205

(2020) ..................................................................................................................22

Ritter v. Lehigh Cnty. Bd. of Elections, No. 1322 CD 2021, 2022 WL

16577 (Pa. Commw. Ct. Jan. 3, 2022) ..................................................................7

Sadler v. Workers’ Comp. Appeal Bd., 244 A.3d 1208 (Pa. 2021). ........................19

Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005)..........................................14

Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 908

A.2d 875 (Pa. 2006) ............................................................................................12

Summit Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d

995 (Pa. 2003) .......................................................................................................8

W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620 (Pa. Commw. Ct.

2017) ...................................................................................................................12

Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash.

2006) ...................................................................................................................14

Winston v. Moore, 91 A. 520 (Pa. 1914) .................................................................21

Constitutions

Pa. Const. art. VII, § 1..........................................................................................2, 15

Pa. Const. art. VII, § 14 .............................................................................................2

U.S. Const. amend. XXVI .........................................................................................2

U.S. Const. art. VI, cl. 2 ...........................................................................................12

Statutes and Legislation

1 Pa.C.S. § 1922 ................................................................................................ 10, 21

25 P.S. § 2811 ......................................................................................................2, 15

25 P.S. § 3050 ......................................................................................................3, 17

25 P.S. § 3055 ................................................................................................... 19, 20

25 P.S. § 3063 ..........................................................................................................19

25 P.S. § 3146.1 .........................................................................................................2

25 P.S. § 3146.2b ...................................................................................................2, 3

25 P.S. § 3146.6 ............................................................................................... passim

iii

25 P.S. § 3146.8 ............................................................................................ 9, 15, 19

25 P.S. § 3146.9 ...................................................................................................4, 16

25 P.S. § 3150.12b .................................................................................................2, 3

25 P.S. § 3150.16 ............................................................................................. passim

25 P.S. § 3150.17 .................................................................................................4, 16

25 P.S. § 3553 ..........................................................................................................17

25 Pa.C.S. § 1301 ............................................................................................ 2, 9, 15

25 Pa.C.S. § 1328 .......................................................................................................2

52 U.S.C. § 10101 ..................................................................................... 8, 9, 14, 15

Other Authorities

1972 Op. Atty. Gen. No. 121 .....................................................................................2

Pa. Dep’t of State, Guidance Concerning Examination of Absentee

and Mail-in Ballot Return Envelopes (Sept. 11, 2020) ........................................4

Pennsylvania Rule of Appellate Procedure 1532 ......................................................7

Petition for Review, Montgomery Cnty. Bd. of Elections v. Chapman,

No. 339 MD 2021 (Oct. 1, 2021 Pa. Commw. Ct.) ..............................................6

INTRODUCTION

Potentially thousands of Pennsylvanians who voted in the 2022 primary

election are at risk of having their right to vote denied because some counties may

not canvass timely received absentee and mail-in ballots merely because the voter

omitted an inconsequential date from the ballot’s return envelope. This Court

should order counties to canvass the contested ballots.

First, federal law prohibits counties from voiding any ballot on the basis that

a voter neglected to write an inconsequential date on the return envelope, as the

United States Court of Appeals for the Third Circuit recently ruled. Under the

relevant federal statute, the right to vote may not be denied “because of an error or

omission on any record or paper relating to any application, registration, or other

act requisite to voting if such error or omission is not material in determining

whether such individual is qualified under State law.” 52 U.S.C. § 10101(a)(2)(B).

Omitting a date from a voter’s ballot return envelope is such an error.

Second, Pennsylvania law does not permit disenfranchising voters for

neglecting to write a date on their ballot’s return envelope. While the Election

Code instructs that voters “shall . . . fill out, date and sign” the declaration on a

ballot’s return envelope before submitting it, 25 P.S. §§ 3146.6(a), 3150.16(a), the

Election Code does not identify any remedy for when a voter overlooks this

instruction. The Election Code is thus ambiguous on that point. To avoid a conflict

with federal law and Pennsylvania law, the remedy should not be

disenfranchisement.

For either reason, this Court should order counties to canvass those absentee

and mail-in ballots that were timely received if the voter’s only error was omitting

a date on the ballot’s return envelope.1

STATEMENT OF THE CASE

Pennsylvania citizens are qualified to vote if, as of Election Day, they:

(1) will be 18 years old; (2) will have been a citizen for at least one month; (3) will

have lived in Pennsylvania and in their election district for at least thirty days; and

(4) are not imprisoned for a felony conviction. Pa. Const. art. VII, § 1; 25 P.S.

§ 2811; 25 Pa.C.S. § 1301(a).2 Counties initially assess compliance with these

conditions when an individual submits a voter registration application. 25 Pa.C.S.

§ 1328.

Certain qualified voters may vote absentee. Pa. Const. art. VII, § 14; 25 P.S.

§ 3146.1. Any qualified, registered voter can vote as a “mail-in elector.” 25 P.S.

While the Acting Secretary agrees that the disputed ballots should be

counted, she takes no position on whether Petitioners have otherwise shown they

are entitled to an immediate special injunction.

See also Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. Ct.

2000) (holding that individuals with felony convictions, other than those currently

incarcerated, may register to vote); 1972 Op. Atty. Gen. No. 121 (concluding

durational residency requirements longer than 30 days are unenforceable); U.S.

Const. amend. XXVI (prohibiting denial of right to vote to citizens 18 years of age

or older because of age).

§ 3150.11. County boards of elections that receive an application to vote absentee

or by mail-in ballot must confirm the applicant is eligible to vote before approving

the application. Id. §§ 3146.2b, 3150.12b. Application approvals are final, except

that challenges based on ineligibility to vote can be made through 5 p.m. on the

Friday before Election Day. Id. §§ 3146.2b(c), 3150.12b.

Election district registers (i.e., poll books) identify which registered voters

have requested an absentee or mail-in ballot for a particular election. Id.

§§ 3146.6(b)(1), 3150.16(b)(1). Those voters may not vote in person unless they

surrender their blank absentee or mail-in ballot and its return envelope. Id.

§§ 3146.6(b)(3), 3150.16(b)(3). Otherwise, a voter who seeks to vote in person, but

who has already requested an absentee or mail-in ballot may vote only

provisionally. Id. §§ 3146.6(b)(2), 3150.16(b)(2). If a voter returns an absentee or

mail-in ballot by Election Day and also casts a provisional ballot at a polling place,

the absentee or mail-in ballot is counted. Id. § 3050(a.4)(5)(ii)(F).

Functionally identical procedures govern how a voter completes and returns

an absentee or mail-in ballot. Anytime between receiving the ballot and 8 p.m. on

Election Day, the voter secretly marks their ballot, places the ballot in a secrecy

envelope, and then places the secrecy envelope in a return envelope. Id.

§§ 3146.6(a), 3150.16(a). The return envelope contains a printed declaration that

the voter “shall [] fill out, date and sign.” Ibid. Return envelopes have unique

barcodes associated with both the voter and the particular ballot, allowing for

ballots to be tracked through the Statewide Uniform Registry of Electors (SURE).

Pa. Dep’t of State, Guidance Concerning Examination of Absentee and Mail-in

Ballot Return Envelopes (“Sept. 2020 Guidance”), at 2 (Sept. 11, 2020).3 After

sealing the return envelope, the voter delivers the entire package by mail or by

hand to their county board of elections. 25 P.S. §§ 3146.6(a), 3150.16(a).

Absentee and mail-in ballots are timely if received by the voter’s county

board of elections by 8 p.m. on Election Day. Id. §§ 3146.6(c), 3150.16(c).

Counties have a statutory obligation to maintain records of the date all absentee

and mail-in ballots are received. Id. §§ 3146.9(b)(5), 3150.17(b)(5). Counties are

directed to track when an absentee or mail-in ballot was received by stamping its

return envelope with its “received” date.

See Sept. 2020 Guidance at 2.

Additionally, counties are directed to scan a return envelope’s barcode upon

receipt, which generates an additional record in the SURE system of when a ballot

was received. Id.

Timely absentee and mail-in ballots that county boards of elections have

verified, that have not been challenged, and for which there is not due proof that

Available at: https://www.dos.pa.gov/VotingElections/OtherServices

Events/Documents/Examination%20of%20Absentee%20and%20MailIn%20Ballot%20Return%20Envelopes.pdf.

the voter has died prior to Election Day, are counted and included with the election

results. 25 P.S. § 3146.8(d), (f)-(g).

In recent elections, absentee and mail-in ballots returned without the voter

handwriting a date on the return envelope have been a subject of dispute. See In re

Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d

1058, 1068-69 (Pa. 2020) (identifying thousands of such ballots cast in Allegheny

and Philadelphia Counties alone during the 2020 election).

For the 2020 general election, the Supreme Court ruled without a majority

opinion that, under Pennsylvania law, timely ballots would be counted even if the

voter did not handwrite a date on the return envelope. Id. at 1079 (opinion

announcing judgment). The opinion announcing the judgment explained that

Pennsylvania law forbids disqualifying such ballots because “a signed but undated

declaration is sufficient and does not implicate any weighty interest.” Id. at 1078

(opinion announcing judgment). Justice Wecht separately wrote that the Election

Code requires that timely received ballots from voters who fail to write a date on

the return envelope not be canvassed. Id. at 1089 (Wecht, J., concurring and

dissenting). Justice Wecht concurred in the judgment, however, because even

diligent voters would not have known the consequence of omitting the date. Id. at

1089 (Wecht, J., concurring and dissenting). The dissenting Justices read the

Election Code to require voiding ballots returned without a voter’s handwritten

10a

date, and considered that date to serve important purposes. Id. at 1090–91

(Dougherty, J., concurring and dissenting).

In the same case, four Justices identified that voiding ballots for minor errors

may conflict with 52 U.S.C. § 10101(a)(2)(B). Id. at 1074 n.5 (opinion announcing

judgment); id. at 1089 n.54 (Wecht, J., concurring and dissenting). The opinion

announcing the judgment described one party as having argued with “persuasive

force” that there would be a conflict, id. at 1074 n.5, and later explained that, under

Pennsylvania law, “any handwritten date [is] unnecessary and, indeed,

superfluous,” id. at 1077 (opinion announcing judgment).

Questions about how to treat timely ballots that are undated by voters have

persisted since 2020, and counties have not behaved uniformly. In October 2021,

for example, Montgomery and Bucks County sought a declaratory judgment from

Commonwealth Court that state law permits their practice of canvassing timely

received absentee and mail-in ballots cast without a handwritten date on the return

envelope. Petition for Review, Montgomery Cnty. Bd. of Elections v. Chapman,

No. 339 MD 2021 (Oct. 1, 2021 Pa. Commw. Ct.).

Additional litigation arose during the 2021 municipal elections as some

counties decided to count timely ballots that voters neglected to date. Ultimately,

divided panels of the Commonwealth Court issued non-precedential decisions

concluding that Justice Wecht’s concurring opinion compelled the court to order

11a

that ballots not be canvassed if the voter failed to write a date on the return

envelope. In re Election in Region 4 for Downingtown Sch. Bd. Precinct Uwchlan

1, No. 1381 CD 2021, 2022 WL 96156 (Pa. Commw. Ct. Jan. 10, 2022), appeal

denied 2022 WL 536196 (Pa. Feb. 23, 2022); Ritter v. Lehigh Cnty. Bd. of

Elections, No. 1322 CD 2021, 2022 WL 16577, at *8 (Pa. Commw. Ct. Jan. 3,

2022), appeal denied 2022 WL 244122 (Pa. Jan. 27, 2022).

After one of those Commonwealth Court decisions, some of the affected

voters sought an order in federal court that § 10101(a)(2)(B) forbids denying their

right to vote based on their failure to date the return envelope. The United States

Court of Appeals for the Third Circuit agreed with the voters, ruling that “the

dating provisions contained in 25 Pa. Cons. Stat. §§ 3146.6(a) and 3150.16(a) are

immaterial under § 10101(a)(2)(B),” and thus noncompliance with the dating

provisions cannot justify denying anyone’s right to vote. Amended Judgment at 2,

Migliori v. Lehigh County Bd. of Elections, No. 22-1499 (3d Cir. May 23, 2022).

Senate Candidate David McCormick and his campaign committee initiated

this action after learning that, despite the Third Circuit’s judgment, some

Pennsylvania counties still intend to disqualify ballots cast in the 2022 general

primary election if the voter did not handwrite a date on the return envelope.

Petitioners ask that all counties be directed not to deny anyone’s right to vote for

failing to comply with Pennsylvania’s dating provisions.

12a

LEGAL STANDARD

Under Pennsylvania Rule of Appellate Procedure 1532(a), this Court may

issue a preliminary or special injunction when: (1) an injunction is necessary to

prevent immediate and irreparable harm; (2) greater injury would result from

refusing an injunction than from granting it; (3) the injunction will restore the

parties to their status before the alleged wrongful conduct; (4) there is a likelihood

of success on the merits; (5) the injunction is reasonably tailored to the harm; and

(6) a preliminary injunction will not adversely affect the public interest. Summit

Towne Ctr., Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa.

2003); see also Com. ex rel. Pappert v. Coy, 860 A.2d 1201, 1204 (Pa. Commw.

Ct. 2004) (explaining that standard for a preliminary injunction under Pa. R.A.P.

1532 is the same as that for the grant of a preliminary injunction under the Rules of

Civil Procedure).

SUMMARY OF ARGUMENT

Disenfranchising qualified voters whose only mistake was failing to date the

declaration on their absentee or mail-in ballot’s return envelope violates those

voters’ rights under federal law. That is so because an individual’s right to vote

must not be denied for an “an error or omission” on a “record or paper relating to

. . . [an] act requisite to voting” that is not “material in determining whether such

13a

individual is qualified under State law,” 52 U.S.C. § 10101(a)(2)(B), and

noncompliance with Pennsylvania’s dating provisions is such an error or omission.

Indeed, the Third Circuit recently determined that, under § 10101(a)(2)(B),

timely received absentee or mail-in ballots cannot be disqualified on the basis the

voter failed to write a date on the return envelope—the same issue raised here.

Amended Judgment at 2, Migliori, No. 22-1499. Pennsylvania courts regard Third

Circuit interpretations of federal law as persuasive authority. One reason it does so

is to prevent parties from moving between state and federal courts to achieve their

preferred result, a risk that could materialize here if this Court departed from the

Third Circuit’s interpretation of federal law.

Even independent of the Third Circuit’s judgment, this Court should rule

that § 10101(a)(2)(B) prohibits denying a voter’s right to vote merely because the

voter neglected to date their ballot’s return envelope. Pennsylvanians are qualified

to vote if they meet the state’s age, citizenship, and residency requirements as of

Election Day. See Pa. Const. art. VII, § 1; 25 P.S. § 2811(2), (3); id. § 3146.8(d);

25 Pa. C.S. § 1301. And mailed ballots are timely if they are received by 8 p.m. on

Election Day, which counties independently track. 25 P.S. §§ 3146.6(c),

3150.16(c). Including a date on a ballot return envelope is therefore not “material”

to determining a voter’s eligibility.

14a

Alternatively, Pennsylvania law does not allow rejecting timely received

absentee or mail-in ballots just because the voter did not date the return envelope.

Various parts of the Election Code explicitly indicate when a voter’s

noncompliance should result in rejecting their ballot. But the Election Code is

silent about the remedy for a voter’s noncompliance with its dating language. That

silence—as reflected in the Supreme Court’s In re Canvass decisions—leaves

ambiguity about what should happen when a voter does not write a date on their

return envelope. That ambiguity should be resolved mindful of the General

Assembly’s intention that all statutes “be effective and certain” and that they not

“violate the Constitution of the United States or of this Commonwealth.” 1 Pa.C.S.

§ 1922(2)-(3). Because interpreting the dating provisions to punish noncompliance

by disqualifying the relevant ballot would conflict with federal law and may

conflict with the Pennsylvania Constitution, this Court should resolve the statutory

ambiguity to avoid such an outcome.

ARGUMENT

Petitioner Is Likely To Succeed on the Merits

A. Federal Law Prohibits Disqualifying Timely Received Absentee and

Mail-in Ballots Returned Without the Voter’s Handwritten Date

1. This Court Should Follow the Third Circuit’s Interpretation of

Federal Law

When the Supreme Court last considered the class of ballots at issue here,

four Justices observed that voiding ballots for minor errors might conflict with 52

15a

U.S.C. § 10101(a)(2)(B). In re Canvass, 241 A.3d at 1074 n.5 (opinion announcing

judgment); id. at 1089 n.54 (Wecht, J., concurring and dissenting). But because the

relevance of that federal statute had not been briefed, and because the Supreme

Court ordered that, under state law, timely received ballots without the voter’s

handwritten date must be counted in the 2020 election, there was no reason to

resolve if § 10101(a)(2)(B) also required counting those ballots.

The Third Circuit has now answered the federal question that the Supreme

Court first identified. In a case about ballots identical in all relevant respects to

those that Petitioners want counted here, the Third Circuit ruled that “inasmuch as

there is no dispute that ballots that have the wrong date were counted in the

election, it is [] ORDERED and ADJUDGED that, the dating provisions contained

in 25 Pa. Cons. Stat. §§ 3146.6(a) and 3150.16(a) are immaterial under

§ 10101(a)(2)(B).” Amended Judgment at 2, Migliori, No. 22-1499. It therefore

concluded that “there is no basis on this record to refuse to count” timely received

ballots just because the voter failed to comply with Pennsylvania’s dating

provision. Id. Because federal law prevails even if there is a conflict with state law,

U.S. Const. art. VI, cl. 2; Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018); Dooner

v. DiDonato, 971 A.2d 1187, 1198 (Pa. 2009), the Third Circuit ordered that such

ballots be counted, Amended Judgment at 2, Migliori, No. 22-1499. While the

16a

Third Circuit has not yet issued an opinion expanding upon the reasons for its

judgment, the judgment itself explains the conclusion that matters here.

The Third Circuit’s interpretation of federal law should be followed here.

Indeed, the Supreme Court treats Third Circuit interpretations of federal law as

persuasive authority. Stone Crushed P’ship v. Kassab Archbold Jackson &

O’Brien, 908 A.2d 875, 884 (Pa. 2006). It does so to ensure that individuals denied

relief in a Pennsylvania court cannot merely “‘walk across the street’ to gain a

different result”—“an unfortunate situation [that] would cause disrespect for the

law.” Hall v. Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859, 864 (Pa. 2004)

(opinion announcing judgment) (quoting Commonwealth v. Negri, 213 A.2d 670,

672 (Pa. 1965)). Affording the Third Circuit’s interpretations of federal law

persuasive weight means “it is appropriate for a Pennsylvania appellate court to

follow the Third Circuit’s ruling on federal questions to which the U.S. Supreme

Court has not yet provided a definitive answer.” W. Chester Area Sch. Dist. v.

A.M., 164 A.3d 620, 630 (Pa. Commw. Ct. 2017).

Departing from the Third Circuit’s judgment would be particularly

troublesome. Violations of § 10101(a)(2)(B) are privately enforceable through 42

U.S.C. § 1983. Amended Judgment at 2, Migliori, No. 22-1499. So if this Court

determines that § 10101(a)(2)(B) does not require that undated ballots be counted,

any affected voter could then bring a federal action and obtain a contradictory

17a

order. Avoiding that scenario is precisely why this Court should rule consistent

with the Third Circuit’s interpretation of § 10101(a)(2).

2. A Handwritten Date on a Ballot Return Envelope is not

“Material” to Determining Eligibility Under Pennsylvania Law

Even if this Court analyzes the federal question anew, it should still

conclude that § 10101(a)(2)(B) prohibits disqualifying ballots on the basis that the

voter failed to comply with the dating provisions. That statute, passed as part of the

Civil Rights Act of 1964, provides:

No person acting under color of law shall . . . deny the right of any

individual to vote in any election because of an error or omission on

any record or paper relating to any application, registration, or other

act requisite to voting, if such error or omission is not material in

determining whether such individual is qualified under State law to

vote in such election.

52 U.S.C. § 10101(a)(2)(B). It was enacted to end trivial requirements that “served

no purpose other than as a means of inducing voter-generated errors that could be

used to justify” denying the right to vote. Fla. State Conf. of NAACP v. Browning,

522 F.3d 1153, 1173 (11th Cir. 2008). Denying eligible Pennsylvania voters’ right

to vote for merely failing to date the envelope used to return an absentee or mail-in

ballot violates § 10101(a)(2)(B).

Applying the federal statute here, a mailing envelope is a “record or paper.”

Counties that treat omitting an envelope date as a disqualifying error have made

18a

dating the return envelope an “act requisite to voting.”4 And dating the declaration

on an absentee or mail-in ballot return envelope is not “material” because the date

does not assist in determining if the ballot was cast by someone eligible to vote

under Pennsylvania law.

To determine whether an error or omission is “material” under

§ 10101(a)(2)(B), courts compare the erroneous or omitted information against

state law voter qualifications. See, e.g., Martin v. Crittenden, 347 F. Supp. 3d

1302, 1308-09 (N.D. Ga. 2018); Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d

1264, 1270 (W.D. Wash. 2006); Schwier v. Cox, 412 F. Supp. 2d 1266, 1276 (N.D.

Ga. 2005). If the error or omission, accepted as true, does not preclude (or at least

interfere with) determining a voter’s eligibility, the error or omission is not

“material.” NAACP, 522 F.3d at 1175.

In Pennsylvania, a person may vote if, as of Election Day, they are 18 years

old, have been a citizen for at least one month, have lived in Pennsylvania and in

their election district for at least thirty days, and are not imprisoned for a felony

Congress defined “vote” for purposes of § 10101(a)(2)(B) to include “all

action necessary to make a vote effective including, but not limited to, registration

or other action required by State law prerequisite to voting, casting a ballot, and

having such ballot counted . . . .” 52 U.S.C. § 10101(e); see also id.

§ 10101(a)(3)(A) (“For purposes of this subsection . . . the term ‘vote’ shall have

the same meaning as in subsection (e) of this section.”).

19a

conviction. Pa. Const. art. VII, § 1; 25 P.S. § 2811(2), (3); 25 Pa.C.S. § 1301(a). A

dated declaration on a return envelope is not relevant to any of these criteria.

Nor is the date used to determine the point in time against which to measure

the elector’s eligibility to cast the ballot. Eligibility is assessed as of Election Day.

See Pa. Const. art. VII, § 1 (imposing residency requirements for the time period

“immediately preceding the election”); 25 P.S. § 2811(2), (3) (same); id.

§ 3146.8(d) (directing counties to discard absentee and mail-ballots cast by

individuals who died before Election Day); 25 Pa. C.S. § 1301 (allowing anyone

“who will be at least 18 years of age on the day of the next election” to register). 5

Moreover, the handwritten date on the envelope does not assist in separating

timely cast absentee or mail-in ballots from untimely ones. A ballot is timely if a

county receives it by 8 p.m. on Election Day. 25 P.S. §§ 3146.6(c), 3150.16(c).6

Some parties in Migliori argued that the date is “material” under

§ 10101(a)(2)(B) because a person who was eligible at the time they requested an

absentee or mail-in ballot might become ineligible before election date. Under their

theory, the date was needed to determine if such a person became ineligible before

or after the date written on the return envelope. There, too, the date is not “material

in determining whether such individual is qualified under State law.” 52 U.S.C.

§ 10101(a)(2)(B). Anyone who does not meet Pennsylvania’s voter qualifications

as of Election Day may not have their vote counted, even if that person may have

met the eligibility qualifications when completing their ballot.

For the 2020 election only, the Supreme Court ordered that ballots

postmarked by Election Day could be counted if they were received up to three

days later, and that ballots received during this three-day window lacking

postmarks would “be presumed to have been mailed by Election Day unless a

20a

Counties have a statutory obligation to track the date that every absentee or mail-in

ballot was received and make that information available for public inspection. 25

P.S. §§ 3146.9(b)(5), 3150.17(b)(5). They have procedures for doing so—

including stamping ballots as “received” and scanning return envelopes’ barcodes

into the SURE system. See Sept. 2020 Guidance at 2; In re Canvass, 241 A.3d at

1077 (opinion announcing judgment). Plus, timely and untimely ballots remain

segregated. Pennsylvania law and procedures thus provide “a clear and objective

indicator of timeliness, making any handwritten date unnecessary and, indeed,

superfluous.” In re Canvass, 241 A.3d at 1077 (opinion announcing judgment). In

fact, the date written on a return envelope would be an exceedingly poor proxy for

determining if a ballot was received by 8 p.m. on Election Day as ballots dated in

advance of that day certainly may arrive sometime after.

Because in all cases counties can independently verify if a ballot was

received by Election Day’s 8 p.m. deadline without reference to the date written on

the declaration envelope, the written date is not a tool for preventing fraudulently

back-dated votes. In any event, because Pennsylvania employs only a received-by

deadline, 25 P.S. §§ 3146.6(c), 3150.16(c), back-dating is not a way to fraudulently

preponderance of the evidence demonstrates that it was mailed after Election Day.”

Pa. Democratic Party v. Boockvar, 238 A.3d 345, 386 (Pa. 2020). A date might

have had utility in that one-off scenario.

21a

convert an ineligible ballot into a seemingly eligible one.7 A ballot is received by

the deadline or it is not.

Additionally, the written date on a mailed ballot does not determine which

vote to count if someone voted absentee or by mail and also tried to vote in person.

Election district registers identify which voters have requested an absentee or mailin ballot. 25 P.S. §§ 3146.6(b)(1), 3150.16(b)(1). Those voters may not vote in

person unless they surrender their blank absentee or mail-in ballot, and its return

envelope, to their polling place; otherwise, they may vote only provisionally. Id.

§§ 3146.6(b)(2)-(3), 3150.16(b)(2)-(3). If a voter returns a completed absentee or

mail-in ballot before the deadline and also casts a provisional ballot at a polling

place, only the absentee or mail-in ballot is counted, regardless of the date written

on it. Id. § 3050(a.4)(5)(ii)(F).

What is more, consistent with the Department’s guidance, most counties do

not invalidate ballots with “wrong” dates—meaning dates that do not accurately

reflect when the envelope declaration was signed. But for obviously wrong dates—

such as birth dates or dates with the incorrect year—there would be no means of

Dating a mailing envelope also does not communicate the solemnity of the

attestations the voter makes when completing the return envelope’s declaration.

Signing the declaration serves that purpose, as demonstrated by the General

Assembly’s decision to punish anyone who “sign[s] an application for absentee

ballot, mail-in ballot or declaration of elector on the forms prescribed knowing any

matter declared therein to be false.” 25 P.S. § 3553.

22a

verifying that the date written on a declaration envelope is actually the date the

declaration was signed. Counting ballots returned with the wrong date underscores

that the underlying information is unimportant and thus immaterial.

Pennsylvania has now conducted five elections with no-excuse mail-in

voting, and questions relating to undated ballots have been litigated on multiple

occasions. All arguments made for disenfranchising voters who omit the date on

their return envelope are unsupported by Pennsylvania law or are irrelevant to

§ 10101(a)(2)(B).

B. State Law Also Prohibits Disqualifying Timely Received Absentee

and Mail-in Ballots Returned Without the Voter’s Handwritten Date

This Court may separately rule, in accordance with Pennsylvania’s

established principles for interpreting ambiguous statutory language, that

Pennsylvania law does not permit disqualifying timely but undated ballots.

The Election Code instructs that voters “shall” date the declarations printed

on an absentee or mail-in ballots’ return envelope, 25 P.S. §§ 3146.6(a),

§ 3150.16(a), but is silent about the consequence for failing to provide a date. That

silence—as the competing opinions in In re Canvass demonstrate—leaves

ambiguity about what to do with timely ballots returned without a handwritten

date.

When the General Assembly has meant for a voter’s noncompliance with the

Election Code to result in a ballot being rejected, it has said so explicitly. For

23a

example, the Election Code explicitly limits the set of absentee ballots (unless cast

by a military voter) and mail-in ballots that may be canvassed to those “received in

the office of the county board of elections no later than eight o’clock P.M. on the

day of the primary or election.” Id. § 3146.8(g)(1)(ii). Elsewhere, the Election

Code instructs that if a voter returns an absentee or mail-in ballot with identifying

markings on the secrecy envelope, “the envelopes and the ballots contained therein

shall be set aside and declared void.” Id. § 3146.8(g)(4)(ii). Additionally, the

Election Code directs that absentee and mail-in ballots cast by someone who died

before Election Day “shall be rejected.” Id. § 3146.8(d). When ballots were

deposited in ballot boxes, any ballot returned without removal of the number used

to identify that a voter cast the same ballot they received was “void.” Id. § 3055(d).

Nothing in the Election Code identifies a remedy for noncompliance with dating

provisions, let alone does so with this level of clarity. Courts should not add

language to the General Assembly’s statutory schemes. Sadler v. Workers’ Comp.

Appeal Bd., 244 A.3d 1208, 1214 (Pa. 2021).

In light of the General Assembly’s practice of specifically identifying when

noncompliance results in a ballot rejection, the instruction that voters “shall” date

the return envelope does not, alone, identify the remedy for when a voter fails to

comply with the dating provisions. Interpreting all Election Code provisions

expressing that voters “shall” do something to mean that noncompliance must

24a

result in disenfranchisement would lead to concerning results, further signaling that

provisions directing that voters “shall” do something do not unambiguously require

a certain remedy for noncompliance. For example, the Election Code directs that

voters who vote in person by ballot “shall retire to one of the voting compartments,

and draw the curtain or shut the screen door . . . .” 25 P.S. § 3055(a). Those same

voters are told that they “shall fold [their] ballot . . . in the same way it was folded

when received” before returning it. Id. § 3055(d). The General Assembly could not

have meant to use “shall” in each case to indicate that voters who do not

satisfactorily draw their curtain or who do not fold their ballot properly before

returning it must have their ballot voided.

When interpreting an ambiguous statute, Pennsylvania courts determine the

General Assembly’s intent by considering, among other factors, the “occasion and

necessity for the statute,” “mischief to be remedied,” “the object to be attained,”

and the “consequences of a particular interpretation.” 1 Pa.C.S. §§ 1921(c)(1), (3),

(4), (6).

Under these principles of statutory interpretation, the Election Code’s dating

provisions must be read not to allow disenfranchisement of voters who neglect to

date their ballot return envelope. As described, supra Section I, a handwritten date

on the ballot envelope is not necessary for any purpose, does not remedy any

mischief, or advance any other objective. The consequence of interpreting the

25a

Election Code to require that ballots be voided if the voter does not include a date

is that voters are disenfranchised for failing to provide the county with

inconsequential information.

Several additional presumptions apply when Pennsylvania courts confront

an ambiguous statute, including that the General Assembly intends “the entire

statute to be effective” and that it “does not intend to violate the Constitution of the

United States or of this Commonwealth.” 1 Pa.C.S. § 1922(2), (3); see also In re

Canvass, 241 A.3d at 1082 (Wecht, J., concurring and dissenting) (recognizing that

the legislature may “impose a requirement that appears to have a disenfranchising

effect” but only if it “steers clear of constitutional protections”).

Interpreting § 3146.6(a) and § 3150.16(a) to allow for disqualifying ballots

received without a voter’s handwritten date on the return envelope would conflict

with 52 U.S.C. § 10101(a)(2). Supra Section I. Separately, imposing the drastic

consequence of disenfranchisement for noncompliance with the date instructions

could pose a conflict with the right, under the Free Elections Clause, of “each voter

under the law … to cast his ballot and have it honestly counted.” Winston v.

Moore, 91 A. 520, 523 (Pa. 1914). As Justice Wecht previously explained,

noncompliance with mandatory provisions of the Election Code should not result

in disqualification unless voters have “adequate instructions for completing the

declaration of the elector—including conspicuous warnings regarding the

26a

consequences for failing strictly to adhere to those requirements.” Id. at 1089

(Wecht, J., concurring and dissenting) (cleaned up). And despite Justice Wecht’s

suggestion that the General Assembly might clarify the Election Code’s relevant

provisions, id., that has not happened. Indeed, “lived experience”, id., demonstrates

that although the Department of State modified the return envelope design after the

2020 election, there remains a risk of “a constitutionally intolerable ratio of

rejected ballots.” Pa. Democratic Party v. Boockvar, 238 A.3d 345, 389 (Pa. 2020)

(Wecht, J., concurring).

C. The Purcell Principle Cannot Insulate Counties’ Denials of the Right

to Vote from Judicial Review

Finally, Purcell v. Gonzalez, 549 U.S. 1 (2006), cannot justify withholding

relief from Petitioners. The Purcell principle instructs that “lower federal courts

should ordinarily not alter the election rules on the eve of an election.” Republican

Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (emphasis

added); see also Merrill v. Milligan, 142 S. Ct. 879, 880-81 (2022) (Kavanaugh, J.,

concurring in grant of application for stays); Democratic Nat’l Comm. v. Wisconsin

State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J., concurring in denial of

application to vacate stay).

The Purcell principle does not apply here. That principle’s animating

concern is avoiding federal interference with state election procedures “on the eve

of an election.” Republican Nat’l Comm., 140 S. at 1207. This case, however, is in

27a

state court and, in any event, does not involve a pre-election challenge that risks

muddying election rules on the eve of election, or even while voting is already

underway. It is a post-election suit to enforce a federal guarantee of the right to

vote that is decades old. Purcell does not stop courts from adjudicating violations

of the right to vote, which, by necessity, will always become apparent during an

election.

28a

CONCLUSION

For the reasons above, this Court should direct counties to canvass timely

received absentee and mail-in ballots if the voter’s only error was omitting a date

on the ballot’s return envelope.

May 27, 2022

Respectfully submitted,

Josh Shapiro

Attorney General

Christine P. Sun

(pro hac vice application forthcoming)

Marina Eisner

(pro hac vice application forthcoming)

States United Democracy Center

1101 17th Street NW

Washington, DC 20036

Michael J. Fischer

Chief Counsel and Executive Deputy

Attorney General

J. Bart DeLone

Chief Deputy Attorney General

Sean Kirkpatrick

Senior Deputy Attorney General

/s Jacob B. Boyer

Jacob B. Boyer

Deputy Attorney General

Attorneys for Acting Secretary of the

Commonwealth Leigh Chapman

1600 Arch Street, Suite 300

Philadelphia, PA 19103

(267) 768-3968

jboyer@attorneygeneral.gov

29a

CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Case Records

Public Access Policy of the Unified Judicial System of Pennsylvania that require

filing confidential information and documents differently than non-confidential

information and documents.

Dated: May 27, 2022

/s Jacob B. Boyer

Jacob B. Boyer

30a

CERTIFICATE OF LENGTH

I certify that this brief contains 5451 words within the meaning of

Pennsylvania Rule of Appellate Procedure 2135. I have relied on Word’s word

count function to determine the length of this brief.

Dated: May 27, 2022

/s Jacob B. Boyer

Jacob B. Boyer

31a

APPENDIX B

Received 5/26/2022 3:46:43 PM Supreme Court Middle District

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

No. 46 MM 2022

DAVE McCORMICK FOR U.S. SENATE, and DAVID H.

McCORMICK,

Petitioners

LEIGH M. CHAPMAN, in her official capacity as Secretary of

State for the Commonwealth, et al.,

Respondents

ACTING SECRETARY CHAPMAN’S ANSWER TO THE APPLICATION

FOR THE COURT TO EXERCISE JURISDICTION PURSUANT TO ITS

KING’S BENCH POWERS AND/OR GRANT EXTRAORDINARY RELIEF

May 26, 2022

Josh Shapiro

Attorney General

Christine P. Sun

(pro hac vice application forthcoming)

Marina Eisner

(pro hac vice application forthcoming)

Michael J. Fischer

Chief Counsel and Executive Deputy

Attorney General

J. Bart DeLone

Chief Deputy Attorney General

States United Democracy Center

1101 17th Street NW

Washington, DC 20036

Sean Kirkpatrick

Senior Deputy Attorney General

Jacob B. Boyer

Deputy Attorney General

1600 Arch Street, Suite 300

Philadelphia, PA 19103

(267) 768-3968

jboyer@attorneygeneral.gov

Attorneys for Acting Secretary of the

Commonwealth Leigh Chapman

32a

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1

STATEMENT OF JURISDICTION..........................................................................2

STATEMENT OF THE CASE..................................................................................3

SUMMARY OF ARGUMENT .................................................................................9

ARGUMENT ...........................................................................................................11

I. Federal Law Prohibits Disqualifying Timely Received

Absentee and Mail-in Ballots Returned Without the Voter’s

Handwritten Date...........................................................................................11

A. This Court Should Follow the Third Circuit’s Interpretation

of Federal Law..........................................................................................11

B. A Handwritten Date on a Ballot Return Envelope is not

“Material” to Determining Eligibility Under Pennsylvania

Law ...........................................................................................................13

II. State Law Also Prohibits Disqualifying Timely Received

Absentee and Mail-in Ballots Returned Without the Voter’s

Handwritten Date...........................................................................................18

III.The Purcell Principle Cannot Insulate Counties’ Denials of the

Right to Vote from Judicial Review..............................................................22

CONCLUSION........................................................................................................23

33a

TABLE OF AUTHORITIES

Cases

Democratic Nat’l Comm. v. Wisconsin State Legislature, 141 S. Ct. 28

(2020)..................................................................................................................23

Dooner v. DiDonato, 971 A.2d 1187 (Pa. 2009).....................................................12

Fla. State Conf. of NAACP v. Browning, 522 F.3d 1153 (11th Cir.

2008) ............................................................................................................ 14, 15

Hall v. Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859 (Pa. 2004)..................12

In re Bruno, 101 A.3d 653 (Pa. 2014) .......................................................................3

In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen.

Election, 241 A.3d 1058 (Pa. 2020) ........................................................... passim

In re Election in Region 4 for Downingtown Sch. Bd. Precinct

Uwchlan 1, No. 1381 CD 2021, 2022 WL 96156 (Pa. Commw. Ct.

Jan. 10, 2022)........................................................................................................8

Martin v. Crittenden, 347 F. Supp. 3d 1302 (N.D. Ga. 2018).................................15

Merrill v. Milligan, 142 S. Ct. 879 (2022)...............................................................23

Migliori v. Lehigh County Bd. of Elections, No. 22-1499 (3d Cir. May

23, 2022) ..................................................................................................... passim

Mixon v. Commonwealth, 759 A.2d 442 (Pa. Commw. Ct. 2000) ............................4

Murphy v. NCAA, 138 S. Ct. 1461 (2018) ...............................................................12

Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) ......................... 16, 22

Purcell v. Gonzalez, 549 U.S. 1 (2006) ...................................................................22

Republican Nat’l Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205

(2020)..................................................................................................................23

Ritter v. Lehigh Cnty. Bd. of Elections, No. 1322 CD 2021, 2022 WL

16577 (Pa. Commw. Ct. Jan. 3, 2022)..................................................................8

34a

Sadler v. Workers’ Comp. Appeal Bd., 244 A.3d 1208 (Pa. 2021). ........................20

Schwier v. Cox, 412 F. Supp. 2d 1266 (N.D. Ga. 2005)..........................................15

Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 908

A.2d 875 (Pa. 2006)............................................................................................12

W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620 (Pa. Commw. Ct.

2017) ...................................................................................................................13

Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264 (W.D. Wash.

2006) ...................................................................................................................15

Winston v. Moore, 91 A. 520 (Pa. 1914) .................................................................22

Constitutions

Pa. Const. art. V, § 2(a)..............................................................................................3

Pa. Const. art. VII, § 1..........................................................................................4, 15

Pa. Const. art. VII, § 14 .............................................................................................4

U.S. Const. amend. XXVI .........................................................................................4

U.S. Const. art. VI, cl. 2...........................................................................................12

Statutes and Legislation

1 Pa.C.S. § 1922................................................................................................ 11, 21

25 P.S. § 2811 ......................................................................................................4, 15

25 P.S. § 3050 ......................................................................................................5, 18

25 P.S. § 3055 ................................................................................................... 19, 20

25 P.S. § 3063 ..........................................................................................................19

25 P.S. § 3146.1 .........................................................................................................4

25 P.S. § 3146.2b .......................................................................................................4

25 P.S. § 3146.6 ............................................................................................... passim

iii

35a

25 P.S. § 3146.8 .......................................................................................... 10, 15, 19

25 P.S. § 3146.9 ...................................................................................................6, 16

25 P.S. § 3150.12b .....................................................................................................4

25 P.S. § 3150.16 ............................................................................................. passim

25 P.S. § 3150.17 .................................................................................................6, 16

25 P.S. § 3553 ..........................................................................................................17

25 Pa.C.S. § 1301.......................................................................................... 4, 10, 15

25 Pa.C.S. § 1328.......................................................................................................4

42 Pa.C.S. § 502.........................................................................................................3

42 Pa.C.S. § 726.........................................................................................................2

52 U.S.C. § 10101............................................................................................ passim

Other Authorities

1972 Op. Atty. Gen. No. 121 .....................................................................................4

Pa. Dep’t of State, Guidance Concerning Examination of Absentee

and Mail-in Ballot Return Envelopes (Sept. 11, 2020) ....................................5, 6

Petition for Review, Montgomery Cnty. Bd. of Elections v. Chapman,

No. 339 MD 2021 (Oct. 1, 2021 Pa. Commw. Ct.)..............................................8

36a

INTRODUCTION

Potentially thousands of Pennsylvanians who voted in the 2022 primary

election are at risk of having their right to vote denied because some counties may

not canvass timely received absentee and mail-in ballots merely because the voter

omitted an inconsequential date from the ballot’s return envelope. This Court should

exercise jurisdiction over this case now so that the status of those ballots can be

promptly resolved, and the primary election’s winners can be certified based on a

count of all lawfully cast ballots.

This Court should order that the contested ballots be counted. First, federal

law prohibits counties from voiding any ballot on the basis that a voter neglected to

write an inconsequential date on the return envelope, as the United States Court of

Appeals for the Third Circuit recently ruled. Under the relevant federal statute, the

right to vote may not be denied “because of an error or omission on any record or

paper relating to any application, registration, or other act requisite to voting if such

error or omission is not material in determining whether such individual is qualified

under State law.” 52 U.S.C. § 10101(a)(2)(B). Omitting a date from a voter’s ballot

return envelope is such an error.

Second, Pennsylvania law does not permit disenfranchising voters for

neglecting to write a date on their ballot’s return envelope. While the Election Code

instructs that voters “shall . . . fill out, date and sign” the declaration on a ballot’s

37a

return envelope before submitting it, 25 P.S. §§ 3146.6(a), 3150.16(a), the Election

Code does not identify any remedy for when a voter overlooks this instruction. The

Election Code is thus ambiguous on that point. To avoid a conflict with federal law

and Pennsylvania law, the remedy should not be disenfranchisement.

For either reason, Petitioners are entitled to their requested relief.

STATEMENT OF JURISDICTION

This matter raises an issue of immediate public importance. Over a week ago,

more than a million Pennsylvanians voted in the Commonwealth’s 2022 primary

election. With a recount underway in one statewide election and deadlines to certify

election results looming, some counties may not include in their final tallies timely

cast absentee and mail-in ballots where the voter failed to write a date on the ballot’s

return envelope. Those ballots might determine the outcome of some races. This

Court should exercise jurisdiction over this matter now to expeditiously resolve the

status of the contested ballots and allow the primary elections to come to a

conclusion, with winners determined based on a count of all lawfully cast ballots.

This Court is empowered to exercise extraordinary jurisdiction over “any

matter pending before any court” in this Commonwealth involving matters “of

immediate public importance,” and to “assume plenary jurisdiction of such matter at

any stage thereof and enter a final order or otherwise cause right and justice to be

done.” 42 Pa.C.S. § 726.

38a

Alternatively, Petitioners have asked this Court to use its King’s Bench

powers to immediately exercise jurisdiction over this matter. That power derives

from the Court’s authority as “supreme judicial power of the Commonwealth,” Pa.

Const. art. V, § 2(a), and its authority to “exercise the powers of the court, as fully

and amply, to all intents and purposes, as the justices of the Court of King’s Bench,

Common Pleas and Exchequer, at Westminster, or any of them, could or might do

on May 22, 1722,” 42 Pa.C.S. § 502. Exercising King’s Bench power is appropriate

when “the Court cannot suffer the deleterious effect upon the public interest caused

by delays incident to ordinary processes of law, or deficiencies in the ordinary

process of law making those avenues inadequate for the exigencies of the moment.”

In re Bruno, 101 A.3d 653, 671 (Pa. 2014).

The exigencies of this moment require that this Court exercise jurisdiction

now. Prompt directives will ensure that all lawfully cast votes are included as

counties finish canvassing ballots, and as the Acting Secretary prepares to certify the

election’s results. And the public should not be asked to wait any longer than

necessary to learn the outcome of the primary elections.

STATEMENT OF THE CASE

Pennsylvania citizens are qualified to vote if, as of Election Day, they: (1) will

be 18 years old; (2) will have been a citizen for at least one month; (3) will have

lived in Pennsylvania and in their election district for at least thirty days; and (4) are

39a

not imprisoned for a felony conviction. Pa. Const. art. VII, § 1; 25 P.S. § 2811; 25

Pa.C.S. § 1301(a).1 Counties initially assess compliance with these conditions when

an individual submits a voter registration application. 25 Pa.C.S. § 1328.

Certain qualified voters may vote absentee. Pa. Const. art. VII, § 14; 25 P.S.

§ 3146.1. Any qualified, registered voter can vote as a “mail-in elector.” 25 P.S.

§ 3150.11. County boards of elections that receive an application to vote absentee or

by mail-in ballot must confirm the applicant is eligible to vote before approving the

application. Id. §§ 3146.2b, 3150.12b. Application approvals are final, except that

challenges based on ineligibility to vote can be made through 5 p.m. on the Friday

before Election Day. Id. §§ 3146.2b(c), 3150.12b.

Election district registers (i.e., poll books) identify which registered voters

have requested an absentee or mail-in ballot for a particular election. Id.

§§ 3146.6(b)(1), 3150.16(b)(1). Those voters may not vote in person unless they

surrender their blank absentee or mail-in ballot and its return envelope. Id.

§§ 3146.6(b)(3), 3150.16(b)(3). Otherwise, a voter who seeks to vote in person, but

who has already requested an absentee or mail-in ballot may vote only provisionally.

See also Mixon v. Commonwealth, 759 A.2d 442, 451 (Pa. Commw. Ct.

2000) (holding that individuals with felony convictions, other than those currently

incarcerated, may register to vote); 1972 Op. Atty. Gen. No. 121 (concluding

durational residency requirements longer than 30 days are unenforceable); U.S.

Const. amend. XXVI (prohibiting denial of right to vote to citizens 18 years of age

or older because of age).

40a

Id. §§ 3146.6(b)(2), 3150.16(b)(2). If a voter returns an absentee or mail-in ballot by

Election Day and also casts a provisional ballot at a polling place, the absentee or

mail-in ballot is counted. Id. § 3050(a.4)(5)(ii)(F).

Functionally identical procedures govern how a voter completes and returns

an absentee or mail-in ballot. Anytime between receiving the ballot and 8 p.m. on

Election Day, the voter secretly marks their ballot, places the ballot in a secrecy

envelope, and then places the secrecy envelope in a return envelope. Id.

§§ 3146.6(a), 3150.16(a). The return envelope contains a printed declaration that the

voter “shall [] fill out, date and sign.” Ibid. Return envelopes have unique barcodes

associated with both the voter and the particular ballot, allowing for ballots to be

tracked through the Statewide Uniform Registry of Electors (SURE). Pa. Dep’t of

State, Guidance Concerning Examination of Absentee and Mail-in Ballot Return

Envelopes (“Sept. 2020 Guidance”), at 2 (Sept. 11, 2020).2 After sealing the return

envelope, the voter delivers the entire package by mail or by hand to their county

board of elections. 25 P.S. §§ 3146.6(a), 3150.16(a).

Absentee and mail-in ballots are timely if received by the voter’s county board

of elections by 8 p.m. on Election Day. Id. §§ 3146.6(c), 3150.16(c). Counties have

a statutory obligation to maintain records of the date all absentee and mail-in ballots

Available at: https://www.dos.pa.gov/VotingElections/OtherServices

Events/Documents/Examination%20of%20Absentee%20and%20MailIn%20Ballot%20Return%20Envelopes.pdf.

41a

are received. Id. §§ 3146.9(b)(5), 3150.17(b)(5). Counties are directed to track when

an absentee or mail-in ballot was received by stamping its return envelope with its

“received” date. See Sept. 2020 Guidance at 2. Additionally, counties are directed

to scan a return envelope’s barcode upon receipt, which generates an additional

record in the SURE system of when a ballot was received. Id.

Timely absentee and mail-in ballots that county boards of elections have

verified, that have not been challenged, and for which there is not due proof that the

voter has died prior to Election Day, are counted and included with the election

results. 25 P.S. § 3146.8(d), (f)-(g).

In recent elections, absentee and mail-in ballots returned without the voter

handwriting a date on the return envelope have been a subject of dispute. See In re

Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d

1058, 1068-69 (Pa. 2020) (identifying thousands of such ballots cast in Allegheny

and Philadelphia Counties alone during the 2020 election).

For the 2020 general election, this Court ruled without a majority opinion that,

under Pennsylvania law, timely ballots would be counted even if the voter did not

handwrite a date on the return envelope. Id. at 1079 (opinion announcing judgment).

The opinion announcing the judgment explained that Pennsylvania law forbids

disqualifying such ballots because “a signed but undated declaration is sufficient and

does not implicate any weighty interest.” Id. at 1078 (opinion announcing judgment).

42a

Justice Wecht separately wrote that the Election Code requires that timely received

ballots from voters who fail to write a date on the return envelope not be canvassed.

Id. at 1089 (Wecht, J., concurring and dissenting). Justice Wecht concurred in the

judgment, however, because even diligent voters would not have known the

consequence of omitting the date. Id. at 1089 (Wecht, J., concurring and dissenting).

The dissenting Justices read the Election Code to require voiding ballots returned

without a voter’s handwritten date, and considered that date to serve important

purposes. Id. at 1090–91 (Dougherty, J., concurring and dissenting).

In the same case, four Justices identified that voiding ballots for minor errors

may conflict with 52 U.S.C. § 10101(a)(2)(B). Id. at 1074 n.5 (opinion announcing

judgment); id. at 1089 n.54 (Wecht, J., concurring and dissenting). The opinion

announcing the judgment described one party as having argued with “persuasive

force” that there would be a conflict, id. at 1074 n.5, and later explained that, under

Pennsylvania law, “any handwritten date [is] unnecessary and, indeed, superfluous,”

id. at 1077 (opinion announcing judgment).

Questions about how to treat timely ballots that are undated by voters have

persisted since 2020, and counties have not behaved uniformly. In October 2021, for

example, Montgomery and Bucks County sought a declaratory judgment from

Commonwealth Court that state law permits their practice of canvassing timely

received absentee and mail-in ballots cast without a handwritten date on the return

43a

envelope. Petition for Review, Montgomery Cnty. Bd. of Elections v. Chapman, No.

339 MD 2021 (Oct. 1, 2021 Pa. Commw. Ct.).

Additional litigation arose during the 2021 municipal elections as some

counties decided to count timely ballots that voters neglected to date. Ultimately,

divided panels of the Commonwealth Court issued non-precedential decisions

concluding that Justice Wecht’s concurring opinion compelled the court to order that

ballots not be canvassed if the voter failed to write a date on the return envelope. In

re Election in Region 4 for Downingtown Sch. Bd. Precinct Uwchlan 1, No. 1381

CD 2021, 2022 WL 96156 (Pa. Commw. Ct. Jan. 10, 2022), appeal denied 2022 WL

536196 (Pa. Feb. 23, 2022); Ritter v. Lehigh Cnty. Bd. of Elections, No. 1322 CD

2021, 2022 WL 16577, at *8 (Pa. Commw. Ct. Jan. 3, 2022), appeal denied 2022

WL 244122 (Pa. Jan. 27, 2022).

After one of those Commonwealth Court decisions, some of the affected

voters sought an order in federal court that § 10101(a)(2)(B) forbids denying their

right to vote based on their failure to date the return envelope. The United States

Court of Appeals for the Third Circuit agreed with the voters, ruling that “the dating

provisions contained in 25 Pa. Cons. Stat. §§ 3146.6(a) and 3150.16(a) are

immaterial under § 10101(a)(2)(B),” and thus noncompliance with the dating

provisions cannot justify denying anyone’s right to vote. Amended Judgment at 2,

Migliori v. Lehigh County Bd. of Elections, No. 22-1499 (3d Cir. May 23, 2022).

44a

Senate Candidate David McCormick and his campaign committee initiated

this action after learning that, despite the Third Circuit’s judgment, some

Pennsylvania counties still intend to disqualify ballots cast in the 2022 general

primary election if the voter did not handwrite a date on the return envelope.

Petitioners ask that all counties be directed not to deny anyone’s right to vote for

failing to comply with Pennsylvania’s dating provisions.

SUMMARY OF ARGUMENT

Disenfranchising qualified voters whose only mistake was failing to date the

declaration on their absentee or mail-in ballot’s return envelope violates those

voters’ rights under federal law. That is so because an individual’s right to vote must

not be denied for an “an error or omission” on a “record or paper relating to . . . [an]

act requisite to voting” that is not “material in determining whether such individual

is qualified under State law,” 52 U.S.C. § 10101(a)(2)(B), and noncompliance with

Pennsylvania’s dating provisions is such an error or omission.

Indeed, the Third Circuit recently determined that, under § 10101(a)(2)(B),

timely received absentee or mail-in ballots cannot be disqualified on the basis the

voter failed to write a date on the return envelope—the same issue raised here.

Amended Judgment at 2, Migliori, No. 22-1499. This Court regards Third Circuit

interpretations of federal law as persuasive authority. One reason it does so is to

prevent parties from moving between state and federal courts to achieve their

45a

preferred result, a risk that could materialize here if this Court departed from the

Third Circuit’s interpretation of federal law.

Even independent of the Third Circuit’s judgment, this Court should rule that

§ 10101(a)(2)(B) prohibits denying a voter’s right to vote merely because the voter

neglected to date their ballot’s return envelope. Pennsylvanians are qualified to vote

if they meet the state’s age, citizenship, and residency requirements as of Election

Day. See Pa. Const. art. VII, § 1; 25 P.S. § 2811(2), (3); id. § 3146.8(d); 25 Pa. C.S.

§ 1301. And mailed ballots are timely if they are received by 8 p.m. on Election Day,

which counties independently track. 25 P.S. §§ 3146.6(c), 3150.16(c). Including a

date on a ballot return envelope is therefore not “material” to determining a voter’s

eligibility.

Alternatively, Pennsylvania law does not allow rejecting timely received

absentee or mail-in ballots just because the voter did not date the return envelope.

Various parts of the Election Code explicitly indicate when a voter’s noncompliance

should result in rejecting their ballot. But the Election Code is silent about the

remedy for a voter’s noncompliance with its dating language. That silence—as

reflected in this Court’s In re Canvass decisions—leaves ambiguity about what

should happen when a voter does not write a date on their return envelope. That

ambiguity should be resolved mindful of the General Assembly’s intention that all

statutes “be effective and certain” and that they not “violate the Constitution of the

46a

United States or of this Commonwealth.” 1 Pa.C.S. § 1922(2)-(3). Because

interpreting the dating provisions to punish noncompliance by disqualifying the

relevant ballot would conflict with federal law and may conflict with the

Pennsylvania Constitution, this Court should resolve the statutory ambiguity to

avoid such an outcome.

ARGUMENT

Federal Law Prohibits Disqualifying Timely Received Absentee and

Mail-in Ballots Returned Without the Voter’s Handwritten Date

A. This Court Should Follow the Third Circuit’s Interpretation of

Federal Law

When this Court last considered the class of ballots at issue here, four Justices

observed that voiding ballots for minor errors might conflict with 52 U.S.C.

§ 10101(a)(2)(B). In re Canvass, 241 A.3d at 1074 n.5 (opinion announcing

judgment); id. at 1089 n.54 (Wecht, J., concurring and dissenting). But because the

relevance of that federal statute had not been briefed, and because this Court ordered

that, under state law, timely received ballots without the voter’s handwritten date

must be counted in the 2020 election, there was no reason to resolve if

§ 10101(a)(2)(B) also required counting those ballots.

The Third Circuit has now answered the federal question that this Court first

identified. In a case about ballots identical in all relevant respects to those that

Petitioners want counted here, the Third Circuit ruled that “inasmuch as there is no

47a

dispute that ballots that have the wrong date were counted in the election, it is []

ORDERED and ADJUDGED that, the dating provisions contained in 25 Pa. Cons.

Stat. §§ 3146.6(a) and 3150.16(a) are immaterial under § 10101(a)(2)(B).”

Amended Judgment at 2, Migliori, No. 22-1499. It therefore concluded that “there

is no basis on this record to refuse to count” timely received ballots just because the

voter failed to comply with Pennsylvania’s dating provision. Id. Because federal law

prevails even if there is a conflict with state law, U.S. Const. art. VI, cl. 2; Murphy

v. NCAA, 138 S. Ct. 1461, 1480 (2018); Dooner v. DiDonato, 971 A.2d 1187, 1198

(Pa. 2009), the Third Circuit ordered that such ballots be counted, Amended

Judgment at 2, Migliori, No. 22-1499. While the Third Circuit has not yet issued an

opinion expanding upon the reasons for its judgment, the judgment itself explains

the conclusion that matters here.

The Third Circuit’s interpretation of federal law should be followed here.

Indeed, this Court treats Third Circuit interpretations of federal law as persuasive

authority. Stone Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 908 A.2d

875, 884 (Pa. 2006). It does so to ensure that individuals denied relief in a

Pennsylvania court cannot merely “‘walk across the street’ to gain a different

result”—“an unfortunate situation [that] would cause disrespect for the law.” Hall v.

Pennsylvania Bd. of Prob. & Parole, 851 A.2d 859, 864 (Pa. 2004) (opinion

announcing judgment) (quoting Commonwealth v. Negri, 213 A.2d 670, 672 (Pa.

48a

1965)). Affording the Third Circuit’s interpretations of federal law persuasive

weight means “it is appropriate for a Pennsylvania appellate court to follow the Third

Circuit’s ruling on federal questions to which the U.S. Supreme Court has not yet

provided a definitive answer.” W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620,

630 (Pa. Commw. Ct. 2017).

Departing from the Third Circuit’s judgment would be particularly

troublesome. Violations of § 10101(a)(2)(B) are privately enforceable through 42

U.S.C. § 1983. Amended Judgment at 2, Migliori, No. 22-1499. So if this Court

determines that § 10101(a)(2)(B) does not require that undated ballots be counted,

any affected voter could then bring a federal action and obtain a contradictory order.

Avoiding that scenario is precisely why this Court should rule consistent with the

Third Circuit’s interpretation of § 10101(a)(2).

B. A Handwritten Date on a Ballot Return Envelope is not “Material”

to Determining Eligibility Under Pennsylvania Law

Even if this Court analyzes the federal question anew, it should still conclude

that § 10101(a)(2)(B) prohibits disqualifying ballots on the basis that the voter failed

to comply with the dating provisions. That statute, passed as part of the Civil Rights

Act of 1964, provides:

No person acting under color of law shall . . . deny the right of any

individual to vote in any election because of an error or omission on

any record or paper relating to any application, registration, or other act

requisite to voting, if such error or omission is not material in

49a

determining whether such individual is qualified under State law to vote

in such election.

52 U.S.C. § 10101(a)(2)(B). It was enacted to end trivial requirements that “served

no purpose other than as a means of inducing voter-generated errors that could be

used to justify” denying the right to vote. Fla. State Conf. of NAACP v. Browning,

522 F.3d 1153, 1173 (11th Cir. 2008). Denying eligible Pennsylvania voters’ right

to vote for merely failing to date the envelope used to return an absentee or mail-in

ballot violates § 10101(a)(2)(B).

Applying the federal statute here, a mailing envelope is a “record or paper.”

Counties that treat omitting an envelope date as a disqualifying error have made

dating the return envelope an “act requisite to voting.”3 And dating the declaration

on an absentee or mail-in ballot return envelope is not “material” because the date

does not assist in determining if the ballot was cast by someone eligible to vote

under Pennsylvania law.

To determine whether an error or omission is “material” under

§ 10101(a)(2)(B), courts compare the erroneous or omitted information against state

law voter qualifications. See, e.g., Martin v. Crittenden, 347 F. Supp. 3d 1302, 1308-

Congress defined “vote” for purposes of § 10101(a)(2)(B) to include “all

action necessary to make a vote effective including, but not limited to, registration

or other action required by State law prerequisite to voting, casting a ballot, and

having such ballot counted . . . .” 52 U.S.C. § 10101(e); see also id. § 10101(a)(3)(A)

(“For purposes of this subsection . . . the term ‘vote’ shall have the same meaning as

in subsection (e) of this section.”).

50a

09 (N.D. Ga. 2018); Wash. Ass’n of Churches v. Reed, 492 F. Supp. 2d 1264, 1270

(W.D. Wash. 2006); Schwier v. Cox, 412 F. Supp. 2d 1266, 1276 (N.D. Ga. 2005).

If the error or omission, accepted as true, does not preclude (or at least interfere with)

determining a voter’s eligibility, the error or omission is not “material.” NAACP,

522 F.3d at 1175.